Terms & Conditions of Trade

Australasian Packaging Solutions Limited T/A APS – Terms and Conditions of Trade

1. Definitions

1.1 “APS” means Australasian Packaging Solutions (Australasian Packaging Solutions Limited), its successors and assigns or any person acting on behalf of and with the authority of Australasian Packaging Solutions.

1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order.

1.3 “Goods” means all Goods or Services supplied by APS to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other) and will be the product as specified in the product description on the APS Quote or Proforma Invoice.

1.4 “Price” means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Goods as agreed between APS and the Customer in accordance with clause 4 below.

1.5 “Order” means an agreement between APS as detailed in the APS Quote or Proforma Invoice and the Customer for APS to supply Goods and/or Services to the Customer. The Order will be deemed to have been placed after approval and sign off of the APS Proforma Invoice and artwork, if any, by the Customer by email.

1.6 “Quote” means a written offer from APS to the Customer to supply Goods and/or services for a specified price subject to the terms and conditions of such offer.

2. Terms and Conditions of Trade

2.1 The terms and conditions set out in this agreement apply to every supply of Goods and Services made by APS to the Customer. By placing an Order with APS the Customer agrees that it is bound by these Terms and Conditions of Trade and that the Customer’s own terms and conditions do not apply.

2.2 Where the Customer has entered into a separate written supply agreement with APS, these Terms and Conditions shall also apply except to the extent that there is any inconsistency between these Terms and Conditions and the separate supply agreement, in which case the relevant provisions of the supply agreement shall prevail.

3. Change in Control

3.1 The Customer shall give APS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s name, address, email, contact phone number or business practice). The Customer shall be liable for any loss incurred by APS as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1 At APS’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by APS (subject to clause 4.4) to the Customer and unless otherwise stated, the Price will be in New Zealand Dollars, GST exclusive and will include delivery by sea freight to a store within the Auckland Metropolitan area.

(b) APS’s quoted price (subject to clause 4.4) which will be valid for the period stated in the APS Quote or Proforma Invoice otherwise for a period of thirty (30) days.

4.2 Air freight and split shipments requested by the customer will incur additional freight costs and local charges. Payment terms will be as stated on APS’s invoice.

4.3 APS will not be liable for unpacking or cleaning fees incurred by the Customer or its agents unless expressly covered in APS’s Quote or Proforma Invoice.

4.4 APS reserves the right to change the price if a variation to APS’s quotation is requested. APS also reserves the right to change the quoted price within the thirty days if there is any variation from the plan of scheduled Services or specifications of the Goods beyond APS’s control (including, but not limited to, any variation in the cost of materials and labour, taxes, levies, international freight and insurance charges, or fluctuations in currency exchange rates). APS also reserves the right to change the Price of an order that has failed to go to production within 60 days from its acceptance and sign off by the Customer.

4.5 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, APS reserves the right to vary the Price with alternative Goods as per clause 4.4. The Customer reserves all rights to decline alternative Goods at the time of quotation.

4.6 Time for payment of the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by APS and as shown on the APS Quote or Proforma Invoice.

4.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by APS nor to withhold payment of any invoice because part of that invoice is in dispute.

4.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to APS an amount equal to any GST APS must pay under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

4.9 APS reserves the right to suspend any discount or rebate and to restrict or withhold the supply of further Goods and Services to the Customer if these payment terms are not strictly adhered to. If the Customer defaults in making payment APS may:

(a) charge interest on all overdue invoices at APS's cost of borrowing plus 5% calculated from the due date to the date of the payment;

(b) charge the Customer all costs including legal fees (as between solicitor and client), debt collection charges and court costs incurred by APS in recovering outstanding monies; and

4.10 Without prejudice to APS’s other remedies at law APS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to APS shall, whether or not due for payment, become immediately payable if:

(a) any money payable to APS becomes overdue, or in APS’s opinion the Customer will be unable to make a payment when it falls due

(b) the Customer has exceeded any applicable credit limit provided by APS;

(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provision or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

5. Delivery of Goods

5.1 Delivery of the Goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at APS’s address or at the address of APS’s agent; or

(b) APS (or APS’s nominated carrier) delivers the Goods to the Customer’s nominated address as per the Customer’s instructions even if the Customer is not present at the address.

(c) the Goods are picked up by the carrier arranged by APS on the Customer’s behalf for delivery outside of the Auckland Metropolitan Area.

5.2 APS may deliver the Goods in separate instalments within a reasonable time frame as discussed with the Customer. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.3 Any time specified by APS for Delivery of the Goods is an estimate only and APS will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that APS is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then APS shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.4 APS will use it best endeavours to deliver the Goods in the estimated contract time. APS will not be liable for any loss or damage to the Customer or any of its agents caused by a delay in the Delivery of the Goods.

6. Title

6.1 APS and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid APS all amounts owing to APS; and

6.2 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 6.1:

(a) the Customer is only a Bailee of the Goods and must return the Goods to APS on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for APS and must pay to APS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for APS and must pay or deliver the proceeds to APS on demand.

(d) the Customer should not convert or process the Goods or inter-mix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of APS and must sell, dispose of or return the resulting product to APS as it so directs.

(e) the Customer irrevocably authorises APS to enter any premises where APS believes the Goods are kept and recover possession of the Goods.

(f) APS may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of APS.

(h) APS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery.

7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, APS is entitled to receive all insurance proceeds or, in lieu of insurance, full payment for the Goods.

7.3 If the Customer requests APS to leave Goods to a nominated location and that location is unattended, then such Goods shall be left at the Customer’s sole risk.

7.4 Any advice or recommendation provided by APS in relation to Goods or Services supplied is given in good faith, is based on APS’s own knowledge and experience and shall be accepted without liability on the part of APS. It shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.

8. Security Interest and Personal Property Securities Act 1999 (“PPSA”)

8.1 Upon assenting to these terms of trade in writing the Customer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to APS for Services that have previously been supplied and that will be supplied in the future by APS to the Customer.

8.2 APS and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

8.3 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

8.4 Unless otherwise agreed to in writing by APS, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

8.5 The Customer shall unconditionally ratify any actions taken by APS under clauses 8.1 to 8.5.

9. Customer’s Disclaimer

9.1 The Customer hereby disclaims any right to rescind, or cancel any contract with APS or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by APS and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

10 Defects, Return of Goods and Limit of Liability on Claim

10.1 The Customer shall inspect the Goods on delivery or by way of a production sample provided by APS and shall within seven (7) days notify APS of any alleged defect, damage or failure to comply with the description of Goods as set out in the APS Proforma Invoice and any discrepancy in quantity as stated in the APS Packing List.

10.2 The Customer or its agents shall afford APS an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to have been delivered according to the description set out in the APS Proforma Invoice and the quantity set out in the APS Packing List.

10.3 Any defect of the Goods outside of the specifications as set out in the APS Proforma Invoice shall be reported to APS within 7 days of discovery by the Customer or any of its agents.

10.4 The Customer shall afford APS an opportunity to inspect the Goods or will provide samples upon APS’s request within a reasonable time following notification of defective Goods.

10.5 APS, in good faith, reserves the right to determine whether the Goods are defective.

10.6 If the Goods are deemed defective by APS, APS reserves the right to decide whether the Customer will receive compensation for the Goods or if the Goods shall be replaced or repaired if they can be so within a reasonable timeframe.

10.7 Goods will not be accepted for return other than in accordance with 10.1 above, and provided that:

a) APS has agreed in writing to accept the return of the Goods

b) the Goods are returned in as new condition and in the supplier’s own original packaging after being stored in a reasonable manner.

c) the defective Goods are returned within one year of delivery.

10.8 No warranty is given that the Goods will be compatible with the Customer’s product or manufacturing system used by the Customer or its agents. It is the responsibility of the Customer to test and evaluate the suitability and compatibility of the goods with the intended product, manufacturing system and environmental conditions the Goods will be exposed to prior to ordering the goods.

10.9 It is the Customer’s responsibility to test the filling capacity of the Goods with their product. Packaging volumetric labels are intended as a guide only.

10.10 APS will not be responsible for incorrect fitting or usage of the Goods by the Customer, its employee or agent

10.11 APS will use its best endeavours to enforce any guarantees or warranties given by the manufacturer of any goods.

10.12 APS’s total liability for any loss arising from any defect or non-compliance of the Goods or any other breach by APS of its obligations under this agreement will not in any circumstances exceed the invoiced price of the Goods.

10.13 APS will not be liable for any consequential indirect or special loss of any kind or any loss caused by the Customer’s servants, agents or any other persons whatsoever.

10.14 The Customer will indemnify APS against any claim by the Customer’s servants, agents or any other persons in respect of any loss arising from any defect in or non-compliance of the goods or in respect of any other matter whatsoever.

10.15 APS will not be responsible for minor variations of colour from order to order or for minor variations from the Customer’s designated colour.

10.16 APS accepts all information and certification relating to the Goods as supplied by APS’s suppliers in good faith and will not be responsible for any loss or damage that is caused by any misinformation.

11. Intellectual Property

11.1 The Customer warrants that all designs, specifications or instructions given to APS will not cause APS to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify APS against any action taken by a third party against APS in respect of any such infringement.

11.2 APS reserves the right to hold in confidence the names of their suppliers and agents as part of their Intellectual Property.

12. Consumer Guarantees Act 1993

12.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by APS to the Customer.

12.2 Where the supply of Goods is to a Customer who is a supplier (as defined in the Consumer Guarantees Act) the Customer covenants with APS that it will not make or allow to be made in respect of the Goods supplied any statements or representations as to quality or description other than those made by APS. The Customer hereby indemnifies and will keep indemnified APS against any claims, losses, damages and costs which may be made against APS in respect of statements or representations which are made contrary to the provisions of this clause.

13. Cancellation

13.1 Without prejudice to any other remedies APS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions APS may suspend or terminate the supply of Goods to the Customer. APS will not be liable to the Customer for any loss or damage the Customer suffers because APS has exercised its rights under this clause.

13.2 APS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice APS shall repay to the Customer any money paid by the Customer for the Goods. APS shall not be liable for any loss or damage whatsoever arising from such cancellation.

13.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by APS as a direct result of the cancellation (including, but not limited to, any loss of profits).

13.4 Cancellation of orders for Goods made to the Customer’s specifications will definitely not be accepted once an order has been placed with the manufacturer.

14. Dispute Resolution

14.1 All disputes and differences between the Customer and APS touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

15. Privacy Act 1993

15.1 The Customer authorises APS to collect, retain and use personal information about the Customer for the following purposes:

a) assessing the Customer’s creditworthiness;

b) administering the Customers’ Orders;

c) receiving information from one or more credit reference agencies, concerning the credit history of the Customer;

d) disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Customer’s credit worthiness.

15.2. For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the trading relationship.

15.3. The Customer if an individual has a right of access to personal information about the Customer held by APS and may request correction of the information.

16. General

16.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand

16.3. APS shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond their reasonable control.

16.4 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.

16.5 Any letter or notice given under these Terms will be validly and sufficiently given if sent by pre-paid post, facsimile or electronic mail to the address details notified by one party to the other from time to time. A notice sent by post shall be deemed to have been received on the third working day following the day of posting. A notice sent by facsimile or electronic mail shall be deemed to have been received on the date specified on the facsimile transmission receipt or email delivery receipt.

16.6 Except as required by law both parties shall preserve as confidential any information of a confidential nature that they acquire in relation to the other.